IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
LINDA APPAH - (Defendant/Appellant))
FRANCIS KOFFI KLUTSE AND MESSEURS VANDERPUYE ORGLE ESTATES LIMITED - (Plaintiffs/Respondents)
DATE: 8 TH FEBRUARY, 2018
CIVIL APPEAL NO: H1/38/2016
JUDGES: KUSI-APPIAH J.A. (PRESIDING), HONYENUGA J.A., KWOFIE J.A.
NII AKWEI BRUCE THOMPSON FOR DEFENDANT/APPELLANT
SUSUANA NYAMPONG (M/S) FOR PLAINTIFFS/RESPONDENTS
The respondents to this appeal, Francis Koffi Klutse and Vanderpuye Orgle Estates Limited (hereinafter called the Plaintiffs) brought an action at the High Court, Accra against the appellant herein, Linda Appah (hereinafter called the Defendant) for declaration of title to a piece or parcel of land lying and being at New Aplaku between miles 9 and 11 off the Accra Winneba road in the Greater Accra Region covering an approximate area of 0.51 acres.
Apart from the declaration, the plaintiffs also sought recovery of possession of the said land, general damages for trespass and conversion of building materials and an order to demolish the structures erected on the land and perpetual injunction against the defendant and her privies. The facts which gave rise to the case are as follows:
On or about 28th September, 1973, the 2nd plaintiff a real estate developer, acquired a large tract of land including the land in dispute from one Nii Adja Kwao II who was then the paramount chief and lawful representative of the James Town Stool. The 2nd plaintiff’s conveyance was challenged in 1989 on the ground that the James Town Chief who had sold the land to them had been destooled and as such the Lands Commission should expunge the records relating to the conveyance.
But the 2nd plaintiff’s said grant was confirmed by the Supreme Court in the case of Republic vrs. Court of Appeal, Ex parte Lands Commission, Vanderpuye Orgle Estates Ltd. (Interested Party (1998-99) S.C.G.L.R. 677. The Supreme Court in that case held inter alia that the acts made by the chief before his destoolment were valid including the 2nd plaintiff’s conveyance.
Sometime in 2010, the 2nd plaintiff sublet a portion of the land in the 1973 conveyance to the 1st plaintiff. It is the plaintiffs’ case that at the time of the conveyance, the land was bare of any structure. That the 1st plaintiff took effective possession of land and deposited twelve (12) trips of stone, 28 trips of gravel, two trips of sand and one thousand (1,000) 6-inch cement blocks on the land to develop same. However, the 1st plaintiff was chased away by land guards/ persons in the employ of the defendant. According to the 1st plaintiff, the defendant then proceeded to build on the land using his building materials and preventing the plaintiffs from having access to the land.
For her part, the defendant filed a 14 paragraph defence in which she denied plaintiffs claim to ownership of the land, the alleged possession of 1st plaintiff’s grantor and that of himself:
The defendant averred that she has been in lawful possession of her land since 1990 from the Aplaku stool and the document evidencing the transaction between the Aplaku stool and and herself was sworn before the Chief Registrar on 16th October, 1991. Defendant further averred that the lease dated 28th September, 1973 between Nii Adja Kwao II and Vanderpuye Orgle Estates was to a partnership not a limited liability company. She therefore contended that Vanderpuye Orgle Estates Limited had no grant in the area.
The defendant maintained that at the time the land was conveyed to her by the Aplaku stool, there had not been any earlier conveyance of that land. That she has put up a 2-bedroom structure on the land in addition to a new building which was commenced before the writ was issued. The defendant contended that she has employed a caretaker and has been in undisturbed possession ever since.
The learned trial Judge after hearing evidence from the parties gave judgment for the plaintiffs and granted all the reliefs sought by them. Against this decision, the defendant has appealed. The grounds of appeal as contained in the notice filed on 30th October, 2014 by the defendant were as follows:
“(1) The judgment is against the weight of evidence.
(2) The learned trial Judge erred in law when she held that the 2nd plaintiff/respondent limited liability company had legal title to the land the subject-matter of the dispute.
(3) The learned trial Judge erred when she relied on exhibit B for 2nd plaintiff to hold that the 2nd plaintiff/respondent a limited liability company had taken over the interest of Vanderpuye Orgle Estates a partnership in the land.
(4) The learned trial Judge erred when she held that the defendant’s land fell within the grant to Vanderpuye Orgle Estates a partnership.
(5) The learned trial Judge erred when she held that the plaintiffs/respondents’ action if they ever had title was not statute barred.
(6) The learned trial Judge erred when she held and found that the 1st plaintiff’s land fell within the land granted to Vanderpuye Orgle Estates in 1973.
(7) Further grounds of appeal would be filed on receipt of the record of appeal.
Even though the defendant gave notice in the Notice of Appeal that further grounds of appeal would be filed, she did not do so. In effect, the defendant relied on the six grounds of appeal as stated above.
The defendant/appellant and the plaintiffs/respondents have pursuant to the rules of this court, filed their written submissions, more properly called briefs, in which they have raised several matters of law for our consideration. But to us, this appeal turns essentially on an assessment of the weight of evidence adduced at the trial High Court and a point of law, argued before this court. The evaluation of evidence on record will determine:
Whether or not the transfer of assets from Vanderpuye Orgle Estates as a partnership to Vanderpuye Orgle Estates Limited affected the ownership of the land in dispute. In other words, whether the 2nd plaintiff has a valid title to a large parcel of land lying and situate at Aplaku between miles 9 and 11 on the Accra Winneba Road.
Whether the 2nd plaintiff has right or capacity to convey the beneficial interest in the land in dispute to the 1st plaintiff herein. Simply put, whether the sub-lease made by 2nd plaintiff in favour of the 1st plaintiff was valid?
Whether or not the plaintiffs’ action is statute barred.
Whether the findings of fact by the trial High Court is supported by evidence on record or not.
In this appeal, I shall consider the points raised herein under two heads namely; those which touch and concerns issues of law and secondly, those which turn on issues of fact. Since those bordering purely on matters of law such as the legal effect of whether the transfer of assets from Vanderpuye Orgle Estates as a partnership to Vanderpuye Orgel Estates Limited affected the ownership of the land in dispute and whether the 2nd plaintiff has right or capacity to convey the beneficial interest in the land in dispute to the 1st plaintiff herein are likely to have a bearing on the factual determination, I wish to start from a legal consideration of these issues before turning to the factual evaluation.
ISSUES OF LAW:
In arguing the appeal, counsel for the appellant started with grounds 2 and 3 together.
Grounds 2 and 3 read as follows:
“2. The learned trial Judge erred in law when she held that the 2nd plaintiff/respondent
Limited Company had legal title to the land the subject matter of the dispute.
3. The learned trial Judge erred when she relied on Exhibit ‘B’ for 2nd plaintiff to hold that the 2nd plaintiff/respondent a limited liability company had taken over the interest of Vanderpuye Orgle Estates, a partnership in the land.”
Under these grounds of appeal, counsel for the defendant/appellant submitted that the whole case of the plaintiffs/respondents’ hinge on a grant allegedly made to the 2nd plaintiff, a company, in September 1973 by Nii Adja Kwao II, the James Town Mantse. According to counsel, this assertion was denied by the defendant that Nii Adja Kwao II ever made a grant to the 2nd plaintiff. The defendant in paragraphs 4 and 5 of her amended statement of defence pleaded that the lease dated 28th September, 1973 was between Nii Adja Kwao II and Vanderpuye Orgle Estates, a partnership and not a limited liability company.
Counsel for the defendant argued that in such a situation, it is incumbent upon the plaintiffs to offer evidence to prove their assertion that the 2nd plaintiff, a limited liability company was the lessee of 28th September, 1973 lease. However, the proof offered by the 2nd plaintiff was exhibit ‘A’, a document which has Nii Adja Kwao II, the Paramount Chief of James Town as lessor and Vanderpuye Orgle, a partnership as lessee.
In support of this contention, counsel for the appellant submitted that a limited liability company is different from a partnership and that a company in law cannot take over a partnership. He sought support from the Incorporated Private Partnership Act (Act 152) Section 1 (2) (b) which reads:
“1 (2) For the purposes of subsection (1), an association of members is not a partnership if it is;
(b) A company, body corporate or unincorporated association formed under any other enactment.”
Counsel argued that Section 1 (2) (b) of the above cited Act 152 makes it very clear that a partnership is not a company. He contended that even if a company could be formed to take over a partnership, then landed property of the partnership would have to be assigned and registered under the Land
Registry Act, 1962 (Act 122) before the new company – i.e. Vanderpuye Orgle Estates Limited, the 2nd plaintiff herein could be vested with any interest therein.
Counsel for the defendant further submitted that there was no formal assignment of the interest of the partnership in the land comprised in Exhibit ‘A’, made out to the 2nd plaintiff herein by the partnership. Neither was a photocopy of Exhibit ‘B’ tendered by the 2nd plaintiff, which is the regulation of the 2nd plaintiff’s company (filed with the Registrar of Companies when the 2nd plaintiff company was incorporated) amounts to a legal title nor an assignment of the interest of the partnership in the land to the 2nd plaintiff herein. He therefore concluded that there was no deed of assignment to Vanderpuye Orgle Estates Limited. The 2nd plaintiff company as a stranger to Exhibit ‘A’, has no land from the James Town Stool and ipso-facto, to convey the land in dispute to the 1st plaintiff as it did. Consequently, the 1st plaintiff herein acquired no title in the subject property.
To these submissions, counsel for the plaintiffs contended otherwise. He submitted that the tendering of a photocopy of Exhibit ‘B’ does not make the document fatal as it was tendered to prove that an event had taken place, which event was that the limited liability company had taken over the assets of the partnership.
Learned counsel contended that from the regulations of Vanderpuye Orgle Estates Limited, there was a clear intention to acquire the assets of the partnership and have same transferred into the company. In his view, there was a contract between the company and the partnership for the business of the partnership and this was for all the partnerships assets and liabilities and its business as a whole. Put differently, there was a clear intention in the regulations, Exhibit ‘B’ that the partners of Vanderpuye Orgle Estates have sold their business to Vanderpuye Orgle Estates Limited.
He therefore concluded that the absence of a formal deed of assignment to the company of the partnership’s landed assets is also not fatal to the claim of ownership of the company because it is a rule of equity that Equity sees as done that which ought to be done. Counsel cited a litany of cases to support his stand including:
“1. Halsbury’s Laws of England 3rd Edition vol. 14 at pages 532 -533.
2. Sykes vrs. Abbey (1995-96) 1 GLR 81 at p 88
3. Modern Principles of Equity, A. K. P. Kludze, 2014 edition page 52
4. British Bata Shoe Co. Ltd. Vrs. Roura & Forgas Ltd. (1964) GLR 190”
In this appeal, the central issue to be resolved is; whether or not the transfer of assets from Vanderpuye Orgle Estates as a partnership to Vanderpuye Orgle Estates Limited affected the ownership of the land in dispute. In other words, whether the 2nd plaintiff has a valid title to a large parcel of land lying and situate at Aplaku between miles 9 and 11 on the Accra Winneba Road. While the 2nd plaintiff claims that there was a clear intention in the regulations, Exhibit ‘B’, that the partners of Vanderpuye Orgle Estates have sold their business to the 2nd plaintiff (i.e. Vanderpuye Orgle Estates Limited), the defendant contended otherwise. What does the evidence say?
To begin with, I shall examine the regulations of Vanderpuye Orgle Estates Limited, Exhibit ‘B’. The relevant objects of the 2nd plaintiff company, Exhibit ‘B’ run as:
“To acquire and take over as a going concern, the business now being carried on under the name or style of VANDERPUYE ORGLE ESTATES registered under the registration of the Incorporated Partnership Act 1962 (No. 152) as No. P-3093 and all or any of the assets and liabilities of the proprietor of that business used in connection therewith or belonging thereto.”
Now, what does the above clause mean? To me, it meant that the partnership sold its business to the company – 2nd plaintiff herein. I warmly agree with the submission of the plaintiffs that the 2nd plaintiff acquired the business of the partnership and not the partnership itself. It is pertinent to note that the partnership need not be wound up for it to sell its business to another entity. The partnership could still have existed in the absence of the business it sold to the limited liability company and this is perfectly legal.
Looking through the record, there is no evidence that a deed of assignment was executed in favour of the company – 2nd plaintiff herein. This brings me to the issue of absence of formal deed of assignment to the 2nd plaintiff company of the partnership’s landed assets. Is such defects fatal to the claim of ownership of the subject property by the 2nd plaintiff herein? Here again, while the defendant strongly submitted that such defects are fatal to the claim of ownership of the company, the plaintiffs resisted the contention of the appellant because, it is a rule of equity that Equity looks upon that as done which ought to be done.
Before resolving the above issue, it is pertinent to reiterate that from the regulations of (2nd plaintiff company) Vanderpuye Orgle Estates Limited, there was a clear intention to acquire the assets of the partnership and have same transferred into the company. There was a contract between the Company and the Partnership for the business of the partnership to be sold to the Company.
Indeed, the rule of equity has been espoused over the years by the courts and we shall see if this rule of equity or maxim can be applied in the instant case. In the case of Sykes Vrs. Abbey (1995-96) GLR 81, the Supreme Court held at page 88 that:
“It is universally acknowledged that equity looks upon that as done which ought to be done, or which is agreed to be done. Thus, where an obligation arises from contract, equity goes to the aid of the person entitled to the benefit of the contract and treats as done what ought to be done in his favour as against the person liable to perform it.”
In Modern Principles of Equity, A. K. P. Kludze 2014 edition, at page 52, the learned author wrote the following on the maxim:
“This is a familiar proposition. It applies often to contracts. It means that equity treats a contract to do a thing as if the thing were already done. However, it should be noted that equity will also treat it only in favour of persons entitled to enforce the contract specifically and this principle cannot be invoked in favour of volunteers. The application of the maxim means that a person who enters into possession of the land under a specifically enforceable agreement for a lease is regarded as being practically in the same position as if the lease had actually been granted to him. It is therefore said that an agreement made for a lease is good as a lease…”
Halsbury’s Laws of England, 3rd Edition Vol. 14 pages 532-533, the learned authors writing on the maxim said inter-alia:
“…Neither in equity nor at law can there be an assignment of what has no existence. The assignment operates as a contract, and if it is for value, then when the property comes into existence equity treating that as done which ought to be done fastens upon the property and the contract to assign becomes in equity a complete assignment.
So, where an agreement has been entered into by a company with a clear intention of creating a charge, a charge will be held to be established notwithstanding defects in form.” (Emphasis mine)
See also British Bata Shoe Co. Ltd. Vrs. Roura & Forgas Ltd. (1964) GLR 190 SC.
Applying these principles to the instant case, it is my candid view that there is no evidence that actual deed of assignment was executed in favour of the company. However, the clear intention of the parties seeking to assign the land from the partnership to the company shows that the maxim of equity should be applied in this instance to see as done which ought to be done by granting the 2nd plaintiff company an equitable title to the land.
I must hasten to add that per the contract, Vanderpuye Orgle Estates Ltd. has an equitable title and this is a good title that can only be questioned by another person with legal title. The defendant /appellant has no title at all and as such cannot question the title of the plaintiffs/respondents herein.
Besides, the name of the 2nd plaintiff is what is registered at the Lands Commission (Exhibit D – page 327 of the record of appeal) and this serves as notice to the world of their title. This is what the 1st plaintiff relied on in purchasing the land from the 2nd plaintiff.
From the foregoing, it is clear that the 2nd plaintiff has a good and valid title to a large parcel of land lying and situate at Aplaku between miles 9 and 11 on the Accra Winneba Road. It follows that the 2nd plaintiff has right or capacity to convey the beneficial interest in the land in dispute to the 1st plaintiff herein. Simply put, the sub-lease made by 2nd plaintiff in favour of the 1st plaintiff was valid. The 2nd plaintiff company has equitable title to all that large tract of land between miles 9 and 11 on Accra Winneba Road aforesaid which they can perfect to have legal title.
Subject to the variation that the 2nd plaintiff has equitable title and not legal title as held by the trial court, grounds 2 and 3 of the appeal fail.
Next to consider is the fifth ground of appeal which states that:
“5. The learned trial Judge erred when she held that the plaintiffs/respondents action if they ever had title was not statute barred.”
In support of his contention counsel for the defendant submitted that the plaintiffs in their amended statement of claim filed on 16th July, 2012, described the defendant as a trespasser who had encroached upon and was building on the land allotted to the 1st plaintiff by 2nd plaintiff. The defendant denied this assertion both in her pleading and evidence and insisted that she has been in undisturbed possession of the land since 16th March, 1990 when she was granted the land by Aplaku Stool which is evidenced by a document.
He contended that the defendant has been on the land for over 22 years and has a 2-bedroom self-contained building being complained of which new building was commenced before the writ was issued. Counsel lamented that a visit to the locus confirmed the pleading and testimony of the defendant and her witnesses. But contrary to the evidence on record, the trial Judge held that the action of the plaintiffs was not statute barred. The defendant therefore entreated the court to reverse the holding of the trial court that the plaintiffs were not caught by Section 10 of the Limitation Act, 1972 (NRCD 54).
To resolve the issue whether or not the learned trial Judge erred in law when she held that the plaintiffs were not caught by Section 10 of the Limitation Act, I think it is necessary to examine the nature of the defendant’s occupation on the disputed land. The crucial question is: Can the defendant’s occupation on the disputed land be said to be in adverse possession?
This brings me to the issue of adverse possession. But before then, I need to examine the Limitation Act first and foremost.
LIMITATION ACT 1972 (NRCD 54)
The provisions of Section 10 of the Limitation Act, 1972 (NRCD 54) which deal with recovery of land are in the following terms:
“(1) A person shall not bring an action to recover a land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to a person through whom the first mentioned claims to that person.
(2) A right of action to recover land does not accrue unless the land is in the possession of a person in whose favour the period of limitation can run.
(3) Where a right of action to recover land has accrued and before the right of action is barred, the land ceases to be in adverse possession, the right of action does not accrue until the land is again taken into adverse possession.
(4) For the purposes of this Act, a person is in possession of a land by means only of having made a formal entry in the land.
(5) For purposes of this Act, a continual or any other claim on or near a land does not preserve a right of action to recover the land.
(6) On the expiration of the period fixed by this Act for a person to bring an action to recover land, the title of that person to the land is extinguished.
(7) For the purpose of this section adverse possession means possession of a person in whose favour the period of limitation can run.”
My understanding of the Limitation Act, 1972 above stated is that:
No right of action to recover land accrues unless the land is in possession of some person in whose favour the period in limitation can run (adverse possession).
The right of action does not accrue unless and until adverse possession is taken of the land.
Time therefore cannot begin to run unless and until the true owner ceases to be in possession of his land.
It follows that for an occupier or claimant to succeed against the owner on recovery of land, he must show to the court that he was in adverse possession. And such adverse possession was for a period of more than twelve years.
WHAT IS ADVERSE POSSESSION?
The fifth ground of appeal relates to adverse possession. The question now is: What is adverse possession?
In their book, Words and phrases legally defined, 4th Edition under the General Editorship of David Hay, is a section on adverse possession. At page 80 the book gives an introduction on the subject where it says:
“What constitute adverse possession is a question of fact and degree and depends on all the circumstances of each case, in particular the nature of the land and the manner in which land of that nature is continually used, there is no general principle that, to establish possession of an area of land, the claimant must show that he made physical use of the whole of it. However, for the claimant’s possession of the land to be adverse, so as to start running against the owner, the factual possession should be sufficiently exclusive and the claimant should have intended to take possession.”
The learned Authors continued at page 81 of thier book (supra) that;
“Where the occupier’s possession of the land is by permission of the owner, that possession cannot be adverse and possession is never adverse if it is enjoyed under a lawful title.”
In discussing the meaning and scope of adverse possession (supra), the learned authors, gave two exceptions to adverse possession, namely;
Where the occupier is a licensee on the land and
Where the occupier is on the land lawfully by a grant from the owner(s) of the land.
Guided by the above principle of law, it is my considered opinion that the defendant’s occupation on the disputed land by a grant from the owner (s) of the land, that is, Aplaku Stool, which grant was lawfully made, did not amount to adverse possession. Besides, the true owner (the 2nd plaintiff company) did not cease to be in possession of the land (for time to start running), at the time the defendant took possession of the subject property.
For these reasons, the defendant cannot avail herself with the Limitation Act, 1972 (NRCD 54).
In any case, a cursory look at the record of appeal indicates that both the 2nd plaintiff and the defendant laid claim to the subject property which both of them claim they obtained from the James Town Mantse. Evidence on record indicates that while the 2nd plaintiff acquired large tract of land including the disputed land from the overlord of Aplaku Stool, that is, James Town Mantse, Nii Adja Kwao II in September, 1973, the defendant also acquired the disputed land from the then James Town Mantse through Nii Adam Aplaku II, the lawful occupant of Aplaku Stool on 16th March, 1990. Thus, the fact that James Town Mantse Stool being the owner and grantor of this land to both parties was not in dispute.
I thought that in a situation such as the one confronting us where the parties have a common grantor, the only consideration for any court that is called upon to decide which of the two grantees must have title to the land should be who got the grant first. That this must be so is due to the fact that a grantor who has previously granted land to one person is not permitted by any law to derogate from that grant except where the first grantee is in breach of a covenant entitling the grantor to re-enter and he has actually re-entered the land. See Dovie & Dovie Vrs. Adabunu (2005-2006) SCGLR 905 at 911.
Again, evidence on record also shows that even though the parties are claiming title to the same plot of land, none of them accused the other of fraud or forgery in relation to the grant to his opponent. Moreover, both parties put in documentary evidence to establish title to the land. The scenario then was that none of the documents held by either party was forged or procured by fraud. All the documents held by either party was not forged or procured by fraud. All the documents were issued by the lawful representatives of Aplaku Stool.
In my view therefore, as I earlier said, the court only has to consider the grant first made by the lawful representative of Aplaku Stool and then give judgment for that grantee. By paragraph 4 of the amended statement of claim, the plaintiffs averred that the 2nd plaintiff acquired a large tract of land including the land in dispute from one Nii Adja Kwao II who was then the Paramount Chief and lawful representative of the James Town Stool on 28th September, 1973. Evidence was led to confirm this averment.
The defendant also testified that on 16th March, 1990, Nii Adam Aplaku II, the lawful occupant of Aplaku Stool in James Town Traditional Division granted the land in dispute to her and gave her a document evidencing the transaction. She tendered the document as Exhibit ‘3’
Thus, it is clear that the allocation of the subject property was first made to the 2nd plaintiff in 1973 before the defendant got it in 1990. So, between the two parties, Nii Adam Aplaku II, the lawful occupant of Aplaku Stool erred in making a second grant of the same land to the defendant herein.
Besides, the 2nd plaintiff duly registered the land in accordance with the provisions of Section 24 (1) of the Land Registry Act, 1962 (Act 122). The defendants has no registered instruments. And by Section 26 of Act 122, the 2nd plaintiff’s registered instrument holds priority over whatever instrument defendant has. And 2nd plaintiff’s registered instrument is the only valid document on this plot of land. See Hammond Vrs. Odoi & Another (1982-83) GLR SC; Western Hardwood Enterprise Ltd. & Another Vrs. West African Enterprise Limited (1989-90) SCGLR 105.
From the foregoing, I hold that the James Town Stool having granted the land first to the 2nd plaintiff’s possessor in title, the latter grant was null and void and of no legal effect. The defendant’s grantor in title had no interest right, power or title in the land in dispute to convey same to her. It follows that the defendant herein also had none as her grantor could not give what he did not have (nemo dat quid non habet). I further hold that the trial Judge was justified in holding that the plaintiffs were not caught by the Limitation Act.
In the result, this ground of appeal fails.
ISSUES OF FACT:
Now, I turn my attention to the grounds of appeal based on factual issues. The law is quite clear on findings of fact. In Koglex Ltd. (No. 2) Vrs. Field (2000) SCGLR 175 at 185, the Supreme Court held that an appellate court is justified in interfering with the findings of the trial court where:
“1. The findings of the trial court are clearly unsupported by evidence on record, or where the reasons in support of the findings are unsatisfactory;
2. Improper application of a principle of evidence or where the trial court has failed to draw an irresistible conclusion from the evidence;
3. The findings are based on a wrong proposition of the law, or
4. The finding is inconsistent with crucial documentary evidence.”
I will take grounds 4 and 6 together as same were argued together by counsel for the appellant in the written submission.
The learned trial Judge erred when she held that the defendant’s land fell within the grant to Vanderpuye Orgle, a partnership.
The learned trial Judge erred when she held and found that the 1st plaintiff’s land fell within the land granted to Vanderpuye Orgle Estates Limited in 1973”
IDENTITY OF THE LAND IN DISPUTE
Under these grounds of appeal, the defendant/appellant attacked the judgment of the trial court on the footing that it erred when it held that the defendant’s land fell within the grant to Vanderpuye Orgle, a partnership and/or to Vanderpuye Orgle Estates Ltd.
With all due deference to learned counsel for the appellant, the issue of whether the land in dispute fell within the grant to Vanderpuye Orgle Estates or Vanderpuye Orgle Estates Limited was not an issue before the trial court. Nowhere in the defendant’s statement of defence did she make any issue of the matter contained in these grounds of appeal. Secondly, at no time from the commencement of the evidence to its conclusion at the trial court did the defendant raise any issue with the said grounds 4 and 6. Neither did these grounds of appeal come up for determination and for which the trial court erred by failing to dismiss the plaintiff’s case on that issue. Worse still, nowhere in the judgment did the trial court hold that the defendant’s land fell within the plaintiff’s consignment. What the trial judge concluded at pages 289 – 290 of the record and pages 17-18 of the judgment in essence was that, the grantor validates the grantee’s title and as the 2nd plaintiff had proved his title unlike the defendant, she would hold that the 2nd plaintiff made a valid grant to the 1st plaintiff.
In any event, the record indicates that both parties were “ad idem” on the identity of the land in dispute. The parties were aware that they were litigating over the same parcel of land with the 1st plaintiff claiming his grantors as Vanderpuye Orgle Estate Ltd and the defendant claiming her grantors as the Aplaku Stool.
It is quite strange that the defendant is raising the issue of the identity of the disputed land at this stage when her counsel (who was same) categorically stated at the trial that the identity of the land between the parties were not in dispute. At page 231 of the record, when plaintiffs’ counsel requested that a qualified surveyor be appointed to visit the locus to determine the extent of the land in dispute, counsel for the defendant opposed the application on ground that there was no relevance in taking the surveyor to the land as the identity of the subject property was not in dispute.
I find grounds 4 and 6 as misconceived, and incompetent and the same is accordingly dismissed.
The last ground of appeal which is ground one reads as follows:
“The judgment is against the weight of evidence.”
It seems to me that a substantial part of the arguments canvassed for ground(1) is a repetition of submissions in respect of grounds (2), (3) and (5) which counsel for the appellant had previously made which have all been dealt with above. The only point worthy of attention is whether the findings of fact by the trial court is supported by the evidence on record or not.
Looking down the judgment, the process by which the learned trial judge came to her conclusion on the issues before her, left a great impression on my mind that she did what the law required of her having regard to the nature of the case before her.
I think that the trial judge adequately dealt with the issues raised in the appellant’s appeal and came to the right conclusion on both the facts and the law, having regard to the admitted evidence.
In the case of Boateng and others vrs Boateng (1987 -88) 2GLR 81 C.A. this court stated rightly the legal position that:
“where the appellant contends that a judgment was against the weight of evidence, he assumed the burden of showing from the evidence that that was so”
In the instant case, I am of the opinion that the defendant has failed to discharge the burden and as in “Boateng” case, the evidence on record as well as submission of counsel shows that the findings of fact made by the trial court in respect of the defendant’s claim were amply supported by the evidence on record. There is therefore no basis for interfering with the trial court’s finding against the defendant. I find no merit whatsoever in the defendant’s appeal.
Subject to the above variation in grounds 2 and 3, the appeal is accordingly dismissed.